Estate of Angel Castillo-Rivera v. Brian C. Brown

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 26, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1786 Cir. Ct. No. 2020CV384

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

ESTATE OF ANGEL CASTILLO-RIVERA BY DINORA OTERO DE CASTILLO,
SPECIAL ADMINISTRATOR, AND DINORA OTERO DE CASTILLO, INDIVIDUALLY,

PLAINTIFFS-RESPONDENTS,

V.

BRIAN C. BROWN, MILWAUKEE TRANSPORT SERVICES INC. A/K/A MILWAUKEE
COUNTY TRANSIT SYSTEM, WISCONSIN COUNTY MUTUAL INSURANCE
CORPORATION AND MILWAUKEE COUNTY,

DEFENDANTS-APPELLANTS.

APPEAL from an order of the circuit court for Milwaukee County:
CHRISTOPHER R. FOLEY, Judge. Affirmed.

Before White, C.J., Geenen and Colón, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1786

¶1 PER CURIAM.1 Brian C. Brown, Milwaukee Transport Services,
Inc., Wisconsin County Mutual Insurance Corporation, and Milwaukee County
appeal from an order of the trial court granting a new trial in the interest of justice
in this wrongful death action filed by the Estate of Angel Castillo-Rivera and
Dinora Otero de Castillo.2 For the reasons set forth below, we affirm.

BACKGROUND

¶2 On February 25, 2018, Castillo-Rivera was crossing 35th Street at
the intersection of Wisconsin Avenue and 35th Street when he was hit and killed
by a city bus driven by Brown. At the time of the accident, Brown was making a
right turn from Wisconsin Avenue on to 35th Street.

¶3 Castillo-Rivera filed a complaint alleging that Brown was negligent,
and the case proceeded to a three-day jury trial, after which the jury returned a
verdict finding Brown was not negligent and Castillo-Rivera’s negligence “was a
cause of the accident.” The jury awarded $100,000 for “conscious pain and
suffering” to Castillo-Rivera’s estate and $100,000 for “the loss of society and
companionship” to Dinora Otero de Castillo. ¶3 At the trial, the jury heard
testimony from several witnesses, including Brown, investigating detectives, and
an expert who analyzed the accident. The jury also saw several exhibits, including
pictures of the accident taken from bus and street cameras, and diagrams of the

1
This court granted leave to appeal the order. See WIS. STAT. RULE 809.50(3) (2021-
22). All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
For ease of reference, we refer collectively to the parties in this appeal as “Brown” and
“Castillo-Rivera.”

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intersection reconstructing the accident and what can be seen from the driver’s
seat of the bus.

¶4 As established by the evidence introduced at trial, the accident
occurred around midnight on February 25, 2018, during heavy rain and windy
conditions. Brown was finishing his route for the night, and he dropped Castillo-
Rivera off at the bus stop just east of the intersection of Wisconsin Avenue and
35th Street. Brown then proceeded to the intersection, where he waited at the red
light. While he was waiting at the red light, Brown checked his cell phone for a
response from his girlfriend about whether she could pick him up after his shift,
and he put his phone back in his pocket. When the light turned green, Brown
proceeded to make a right turn from Wisconsin Avenue on to 35th Street, and
Castillo-Rivera was struck by the bus as he was crossing 35th Street.

¶5 Following the trial, Castillo-Rivera moved for a new trial in the
interest of justice. In particular, Castillo-Rivera moved “for an order setting aside
the verdict in this action and for a new trial in the interest of justice, pursuant to
WIS. STAT. § 805.15.” The trial court granted Castillo-Rivera’s motion and found
that:

The no negligence finding as to Mr. Brown is
against the great weight and clear preponderance of the
evidence in that it completely disregards video evidence
[showing that] Mr. Brown failed to make any reasonable
effort during the [fifteen to twenty] second stop period to
observe the northeast corner of the intersection.

Brown petitioned for leave to appeal the trial court’s order, which this court
granted; additional relevant facts will bet set forth as necessary.

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DISCUSSION

¶6 On appeal, Brown argues that Castillo-Rivera is not entitled to a new
trial. In particular, Brown argues that the trial court’s decision “effectively
changed” the jury’s verdict and, as a result, the trial court should have reviewed
Castillo-Rivera’s motion as one for a directed verdict or changed verdict, using the
standard of whether there was credible evidence to support the jury’s verdict.
Brown further argues that, applying the proper standard, the jury’s verdict should
be upheld, and Castillo-Rivera should not be granted a new trial. Alternatively,
Brown argues that the jury’s verdict was not against the great weight and clear
preponderance of the evidence, and Castillo-Rivera is also not entitled to a new
trial under this standard.

¶7 Following a trial, “[a] party may move to set aside a verdict and for a
new trial … because the verdict is contrary to law or to the weight of evidence, or
because of excessive or inadequate damages … or in the interest of justice.” WIS.
STAT. § 805.15(1). Citing § 805.15, Castillo-Rivera moved “for an order setting
aside the verdict in this action and for a new trial in the interest of justice, as the
verdict was against the great weight and clear preponderance of the evidence.”

¶8 Both Castillo-Rivera and Brown then cited WIS. STAT. § 805.15 as
the operative statute in their briefs to the trial court and applied the great weight
and clear preponderance of the evidence as the controlling standard. In the trial
court’s written decision granting Castillo-Rivera’s motion, the trial court applied
this same statute and standard and stated, “The no negligence finding as to
Mr. Brown is against the great weight and clear preponderance of the evidence[.]”
Clearly, the record supports a conclusion that the parties and the trial court

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considered Castillo-Rivera’s motion as one for a new trial in the interest of justice
under § 805.15(1).

¶9 Nevertheless, Brown argues on appeal that the trial court’s analysis
“effectively changed” the jury’s verdict as is done under WIS. STAT. § 805.14 for a
motion for a directed verdict or a changed verdict; therefore, Brown contends that
the proper standard is whether there is no credible evidence to sustain the jury’s
verdict. See WIS. STAT. § 805.14(1), (5). In essence, we construe Brown’s
argument as a request that Castillo-Rivera’s motion for a new trial in the interest
of justice be converted to a motion for a directed verdict or a changed verdict
made pursuant to § 805.14.

¶10 We reject Brown’s ex post facto attempt to convert Castillo-Rivera’s
motion to one made under WIS. STAT. § 805.14. The process for a directed verdict
or a changed verdict is legally distinct from the process for a new trial in the
interest of justice. Indeed, § 805.14 grants the trial court the authority to disregard
or change a jury’s verdict without also requiring that the trial court grant a new
trial. See WIS. STAT. §§ 805.14(5), 805.15(4). By contrast, § 805.15 allows the
trial court “to set aside a verdict” and grant a new trial to obtain a new verdict.
See § 805.15(1).

¶11 The motions are also evaluated using two different standards, with
the standard applied under WIS. STAT. § 805.14 being the “more stringent” of the
two. Seivert v. American Fam. Mut. Ins. Co., 180 Wis. 2d 426, 433-34, 509
N.W.2d 75 (Ct. App. 1993) (“[V]erdicts can be against the great weight of
evidence even though supported by credible evidence.”); see also Krolikowski v.
Chicago & Nw. Transp. Co., 89 Wis. 2d 573, 580, 278 N.W.2d 865 (1979) (“A
new trial may be granted in the interest of justice when the jury findings are

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contrary to the great weight and clear preponderance of the evidence, even though
the findings are supported by credible evidence.”).

¶12 Consequently, we evaluate Castillo-Rivera’s motion as one for a
new trial in the interest of justice made pursuant to WIS. STAT. § 805.15, and we
conclude that the applicable standard is whether the jury’s verdict is against the
great weight and clear preponderance of the evidence.

¶13 “The granting of a new trial is in the discretion of the trial court[.]”
Krolikowski, 89 Wis. 2d at 580. The trial court properly exercises its discretion
“if the trial court sets forth a reasonable basis for its determination that one or
more material answers in the verdict are against the great weight and clear
preponderance of the evidence.” Id. at 581. During our review, “[t]his court owes
great deference to a court’s decision granting a new trial.” Seivert, 180 Wis. 2d at
431. After a review of the trial court’s written decision, we conclude that the trial
court did not erroneously exercise its discretion when it granted Castillo-Rivera a
new trial in the interest of justice.

¶14 In its written decision, the trial court began by saying that it
“reviewed at length each and every video exhibit introduced in this trial and the
exhibit submitted with [counsel’s] affidavit.” The trial court continued, “This case
was tried and virtually all post-trial focus has been on Mr. Brown’s opportunity
and efforts to observe Mr. Castillo-Rivera in the brief moments before the fatal
impact …. Were my or the jury’s evaluation so limited, I would have little
difficulty concluding the verdict should be upheld.” The trial court then provided
that “[t]he assessment is not and cannot be so limited” because Brown’s duty to
maintain a proper lookout included more than those brief moments before impact.
See WIS JI—CIVIL 1055 (defining the duty of lookout).

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¶15 Turning to a review of all the evidence prior to those brief moments,
the trial court stated that there was evidence—particularly in the form of video
footage—that led to the conclusion that Brown “knew or should have known there
was some appreciable likelihood” that Castillo-Rivera was waiting at the
intersection and Brown failed to make a reasonable effort to become aware of
Castillo-Rivera’s presence. Thus, the trial court ordered a new trial in the interest
of justice finding that the jury’s “no negligence finding as to Mr. Brown is against
the great weight and clear preponderance of the evidence” because it “completely
disregards” video evidence of the fifteen to twenty second stop period while
Brown waited at the intersection.

¶16 Ultimately, we conclude that the trial court’s decision sets forth a
reasonable basis for its decision, and we cannot conclude that the trial court
erroneously exercised its discretion.

¶17 Brown argues that the trial court’s reliance on surveillance video in
its decision “has rejected the possibility that Brown could be found not negligent”
because the surveillance video “will always be true for any retrial.” We disagree.
The trial court clearly stated that it reviewed all the evidence in reaching its
decision to grant the motion for a new trial. The trial court used the surveillance
video as a primary indictor that the jury too narrowly construed Brown’s duty to
maintain a proper lookout, but that does not negate the fact that the trial court
reviewed all the evidence in reaching its decision.

¶18 Moreover, “[w]here a trial court orders a new trial in the interest of
justice the order must set forth the reasons for so doing in detail or incorporate by
reference a memorandum decision that does so.” Leatherman v. Garza, 39
Wis. 2d 378, 385, 159 N.W.2d 18 (1968); see also WIS. STAT. § 805.15(2) (“Every

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order granting a new trial shall specify the grounds therefor.”). Therefore, rather
than predetermining the outcome for a subsequent trial, we construe the trial
court’s order as simply fulfilling the trial court’s duty to support its finding that a
new trial in the interest of justice is warranted.

CONCLUSION

¶19 In sum, we conclude that the trial court properly applied the great
weight and clear preponderance of the evidence standard to Castillo-Rivera’s
motion and the trial court did not erroneously exercise its discretion when it
granted Castillo-Rivera’s motion for a new trial in the interest of justice.
Accordingly, the order of the trial court is affirmed.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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